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Chicago-Kent Law Review

Volume 92 Issue 2 Cities in Crisis Article 7

10-30-2017

The Natural Crisis in Southern U.S. Cities

Blake Hudson LSU Law Center and LSU College of the Coast and Environment

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Recommended Citation Blake Hudson, The Natural Capital Crisis in Southern U.S. Cities, 92 Chi.-Kent L. Rev. 529 (2017). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss2/7

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. THE NATURAL CAPITAL CRISIS IN SOUTHERN U.S. CITIES

BLAKE HUDSON

The relentless and accelerating disappearance of natural habitats dom- inated by communities of wild and animals, replaced by biologically impoverished artificial habitats dominated by human structures and com- munities, contributes cumulatively to what may become a “state shift” or “tipping point” in Earth’s .1

I.INTRODUCTION The in the United States is nothing more than the aggregate of the many, smaller environments that make up America’s ur- ban and rural areas. Yet, with population on the rise and land development proceeding at an exponential rate relative to population,2 crucial compo- nents of the natural environment in the United States are becoming increas- ingly degraded. Facing particularly acute threats are natural — also referred in this Article as natural capital3—providing critical services to both municipalities and, in the aggregate, the nation. These resources include wetlands, , , grasslands, and the entire assem- blage of ecological systems that they constitute. Cities have long maintained policy tools to address the management of these resources, through state government-sanctioned zoning and other exercises of the “police power,”4 but have been reticent to utilize them for a

Burlington Resources Professor of Environmental Law, Edward J. Womac, Jr. Professor of Law, Joint Appointment, LSU Law Center and LSU College of the Coast and Environment, Louisiana State University. 1. LEON KOLANKIEWICZ,ROY BECK,&ANNE MANETAS,NUMBERSUSA, VANISHING OPEN SPACES:POPULATION GROWTH AND SPRAWL IN AMERICA 11 (2014), https://www.numbersusa.com/sites/default/files/public/assets/resources/files/vanishing-open-spaces- study.pdf [https://perma.cc/8A9Q-5ZX5] (last visited Feb. 25, 2017). 2. See, e.g., DANA BEACH,PEW OCEANS COMM’N,COASTAL SPRAWL:THE EFFECTS OF URBAN DESIGN ON AQUATIC ECOSYSTEMS IN THE UNITED STATES ii (2002), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/protecting_ocean_lif e/envpewoceanssprawlpdf.pdf [https://perma.cc/7ZXS-PUWV] (last visited Feb. 25, 2017). 3. & Herman E. Daly, Natural Capital and , 6 37, 38 (1992). 4. In the United States, private regulation is reserved to state and local governments under the Constitution. The Tenth Amendment of the United States Constitution reserves for the states powers not delegated to the federal government and acts as a limit on Congress’ regulatory authority,

529 530 CHICAGO-KENT LAW REVIEW [Vol 92:2 number of reasons, including economic disincentives.5 In fact, one of the mechanisms traditionally touted as alleviating a number of the social and economic crises faced by cities (elsewhere addressed in this symposium issue) is land development. Such development provides—among a number of other benefits—homes, jobs, tax revenue, and income for those who sell the property. But at what cost? When cities sprawl and consume evermore natural capital, the cost is ultimately a loss of critical resources needed by future generations to sustain the same economic and social well-being that current generations enjoy. While sprawl is a problem in every major metropolitan region in the nation, it can truly be labeled a crisis in the southeastern United States (the “South”). A vast majority of the fastest-sprawling regions of the country are located in the South, which correlates with southern states lagging be- hind the rest of the nation in household , expectancy, overall health, and a number of other metrics of well-being. It is time that we begin calling urban development in the United States, and in the South in particu- lar, what it is—a crisis. While the problems of urban sprawl have been thoroughly analyzed in the literature, this brief essay attempts to provide a fresh lens through which to analyze the problem. I will utilize an analytical framework con- sisting of three components foundational to understanding land develop- ment in the U.S. South as a crisis. While all three components overlap to a degree, the first relates to characteristics of human behavior, namely, the tendency to fixate on short term gains while ignoring long term harms— effectively a in the land development context. The

“particularly in ‘traditional areas of state and local authority,’ such as land use.” James R. May, Consti- tutional Law and the Future of Natural Protection, in THE EVOLUTION OF NATURAL RESOURCES LAW AND POLICY 124, 132 (Lawrence J. MacDonnell & Sarah F. Bates eds., 2009). State and local governments regulate private property under their “police power” authority to protect the “general welfare.” See generally Mugler v. Kansas, 123 U.S. 623 (1887). Scholars have observed that “[t]he weight of legal and political opinion holds that this allocation of power in the [United States] leaves the states in charge of regulating how private land is used,” (JOHN R. NOLON,PATRICIA E. SALKIN,&MORTON GITELMAN,LAND USE AND COMMUNITY DEVELOPMENT 17 (7th ed. 2008)) and that “[l]and use law has always been a creature of state and local law.” Marci A. Hamilton, Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act, 78 IND. L.J. 311, 335 (2003). The U.S. Supreme Court case that established the foundation for the land use regulatory patterns we see today, Euclid v. Ambler Realty (272 U.S. 365 (1926)), has been de- scribed as a “sweeping paean to the supremacy of state regulation over private property.” PAUL GOLDSTEIN &BARTON H. THOMPSON,JR., PROPERTY LAW:OWNERSHIP,USE, AND CONSERVATION 967 (2006). Furthermore, the U.S. Supreme Court has recognized “the States’ traditional and primary power over land . . . use,” (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001)) and that “[r]egulation of land use . . . is a quintessential state and local power.” Rapanos v. United States, 547 U.S. 715, 738 (2006). 5. See generally Blake Hudson, Realigning Metrics of Economic Well-Being in Housing and Land Use Planning, 54 WASHBURN L.J. 575 (2015). 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 531 second relates to the inherent characteristics of the modern environment, which exhibits and increasing dynamism perhaps best exemplified by cli- mate change. The third relates to the interplay between the first two com- ponents, and the aggregated effects of localized human-natural environment interfaces through both geographic space and time. While this Article leaves the articulation of solutions for how exactly to address the natural capital crisis facing southern U.S. cities to future research, I am hopeful that this Article achieves two objectives. First, I hope that, as a society, we can begin to accept and describe the current dominant forms of land development as a crisis. This admission would have value in and of itself, because we must identify the gravity and nature of the problem be- fore we can address it through sufficient means. Second, I hope this framework and its components are helpful for thinking anew about the drivers of the crisis so that policy-makers can more properly shape neces- sary responses. Viewing the crisis through this lens provides a more direct description of just how threatening the problem of disaggregated land use regulation in the United States is to our collective base. And we should not, through economic development efforts, solve certain social and economic crises by creating another, potentially more devastat- ing crisis. Part II provides background on the problem of sprawl in the United States generally, while Part III details the crisis of land use in the South more specifically. Parts II and III rely heavily on two of the latest compre- hensive reports on urban sprawl, both issued in 2014, by Smart Growth America (the “SGA Report”)6 in conjunction with the Metropolitan Re- search Center and the University of Utah, and by NumbersUSA Education & Research Foundation (the “NUSA Report”).7 Part IV then details the above-mentioned three-component framework for assessing the crisis of sprawl in the U.S. South. Part V concludes.

6. REID EWING &SHIMA HAMIDI,MEASURING SPRAWL 2014, Smart Growth America, available at https://www.smartgrowthamerica.org/app/legacy/documents/measuring-sprawl-2014.pdf [https://perma.cc/RSW5-TFHZ]. Smart Growth America worked in conjunction with the Metropolitan Research Center and the University of Utah, and prepared the report for the National Institutes of Health and the Ford Foundation. The report analyzed development patterns in 221 metropolitan regions with at least 200,000 people across the United States, and assessed the relationship between develop- ment and quality of life in those regions. Id. at 1–2. 7. Kolankiewicz, supra note 1. The report was undertaken by NumbersUSA Education & Re- search Foundation, which focuses in part on dealing with the effects of population growth on the envi- ronment and on American citizens’ quality of life. 532 CHICAGO-KENT LAW REVIEW [Vol 92:2

II. SPRAWL IN THE UNITED STATES In the eighteen years from 1982 to 2010, approximately 65,000 square miles of undeveloped land was converted to urban development, with 41% of that land being , 27% cropland, and 29% pasture and .8 From 2002 to 2010, over 13,000 square miles of natural capital were “cleared, scraped, filled, paved and built over.”9 Eighty-five percent of the land developed since 1982 is located on the periphery of America’s most sprawling urban areas, with the remainder resulting largely from second- home construction, rural recreation, and rural transportation.10 Of course, land use change is not a one-way street. The nation has ex- perienced an ebb and flow of natural capital on its land since the founding of the country. Typically, however, that ebb and flow involves forest or other forms of natural capital ( and prairies) being converted for agricultural use, subsequently being converted back to forest, and so on. Clearly, there remains some land in the United States, such as farmlands, that have reverted back to other forms of natural capital (forests, wetlands), and this ebb and flow will most likely continue into the future.11 Yet recog- nition of this ebb and flow tells us little about the dangers of urban sprawl. While agricultural and similar human developments have reverted to natu- ral , urban sprawl is far less likely to do so. A more relevant inquiry is to compare how much natural capital is permanently paved over and altered with human-built structures with how much land previously altered with human-built structures is reverting to the “natural” . There are certainly some areas around the country, like Detroit,12 where a sort of “reverse urban sprawl” is occurring and where nature is reclaiming developed (though human structures continue to leave their mark on these lands for a very long time). Overall though, the trend at the urban development-natural environment interface is overwhelmingly in one direc- tion—the replacement of natural capital with human-built capital.

8. Id. at ix. 9. Id. at iv. 10. Id. at v. 11. NASA, Land-Cover, Land-Use Change Program, Afforestation in the Midwestern United States, http://lcluc.umd.edu/hotspot/afforestation-midwestern-united-states [https://perma.cc/S7BB- A646] (last visited Feb. 25, 2017). 12. Mickey Mellen, Historical Street View Imagery Shows Detroit Being Reclaimed by Nature, GOOGLE EARTH BLOG (June 11, 2014), http://www.gearthblog.com/blog/archives/2014/06/historical- street-view-imagery-shows-detroit-reclaimed-nature.html [https://perma.cc/UE9B-66PU] (last visited Feb. 25, 2017); Mary Beth Griggs, Detroit’s Dumps are Slowly Being Reclaimed by Nature, SMITHSONIAN MAG.(Sept. 12, 2014), http://www.smithsonianmag.com/smart-news/detroits-dumps- are-slowly-being-reclaimed-nature-180952676/ [https://perma.cc/68PB-WACD] (last accessed Feb. 25, 2017). 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 533

The NUSA Report identifies two primary components of “urban sprawl.” The first is sprawl associated with population growth alone—what can be termed “population sprawl.”13 The second is sprawl associated with the average person consuming more land, or what researchers call “per- capita sprawl.”14 A more precise definition of per-capita sprawl is the de- gree to which “land-use and consumption choices [] lead to an increase in the average amount of urban land per resident.”15 The combination of these two types of sprawl are what the researchers call “overall sprawl.”16 During the most pronounced growth of overall sprawl in our nation’s history, the 1990’s, about half of total sprawl could be attributed to popula- tion growth and half to per-capita sprawl.17 Over the last decade, however, 73% has been driven by population growth.18 The NUSA Report is particu- larly critical of federal immigration policy, claiming that it has contributed to population sprawl. Since 1990, the United States has allowed one million immigrants to enter its borders annually; and after accounting for immi- grant births, the country adds a full twenty million new residents to the nation each decade.19 While acknowledging that movements like Smart Growth, LEED, New Urbanism, and similar programs are helpful for reign- ing in per-capita sprawl, the NUSA Report argues that they are of limited utility in addressing overall sprawl because it is primarily perpetuated by population growth.20 It argues that “[u]ntil the numerical level of national immigration is addressed, even the best local plans and political commit- ment will be unable to stop sprawl.”21

III. SOUTHERN SPRAWL Drivers of urban population growth include not only immigrants enter- ing the nation, but also citizens migrating from one region of the nation to another. And both immigration and migration have contributed to a popula-

13. Kolankiewicz, supra note 1, at 44. 14. Id. 15. Id. at 7. 16. Id. at v. Data for calculating sprawl was gathered by two federal agencies, the U.S. Census Bureau and the Natural Resources Conservation Service of the Department of Agriculture. Since 1950, Census has calculated changes in the size of the nation’s urban areas every ten years, while NRCS has done the same every five years since 1982. Id. at 23. 17. Id. at vi. 18. Id. at 45. 19. Id. at xi. The NUSA Report posits that a far more sustainable immigration level is approxi- mately a half-million immigrants a year, as proposed by the President’s Council on Sustainable Devel- opment in 1996. Id. at 73. 20. Id. at 32. 21. Id. at xi.  CHICAGO-KENT LAW REVIEW>9RO

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41. Kristen M. Fletcher, Managing Coastal Development, in OCEAN AND COASTAL LAW AND POLICY 147–48 (Donald C. Baur et al. eds., 1st ed. 2008) 42. Over half of the top 20 most diverse states in the nation are in the Southeast. See Bruce A. Stein, States of the Union: Ranking America’s Biodiversity, NatureServe (2002), available at: http://www.natureserve.org/library/stateofunions.pdf (last accessed Apr. 21, 2017). 43. JAMES RASBAND ET AL., NATURAL RESOURCES LAW AND POLICY 329-330 (2d ed. 2009). 44. Eight of the top ten poorest states in the nation are located in the South (including Washing- ton, D.C.). SARAH BARON,CTR. FOR AM.PROGRESS ACTION FUND,2014STATE OF THE STATES REPORT 5(2014),https://cdn.americanprogress.org/wp-content/uploads/2014/12/StateofStates2014- report.pdf [https://perma.cc/MR6X-AT7X] (last accessed Feb. 25, 2017). Natasha Bertrand, The Ten Poorest States in America,BUS.INSIDER (Dec. 17, 2014), http://www.businessinsider.com/the-10- poorest-states-in-america-2014-12 [https://perma.cc/SJC9-W955] (last accessed Feb. 25, 2017). 45. Adult Obesity in the United States, http://stateofobesity.org/adult-obesity/ [https://perma.cc/6WJL-J3BC] (last visited Feb. 25, 2017). 46. States with the Highest Type 2 Diabetes Rates, THE STATE OF OBESITY, (Sept. 1, 2016), http://stateofobesity.org/lists/highest-rates-diabetes/ [https://perma.cc/T3ZH-RB7W] (last visited Feb. 25, 2017). 47. Nine out of the ten states with the lowest life expectancy are located in the South. KRISTEN LEWIS &SARAH BURD-SHARPS,AMERICAN HUMAN DEVELOPMENT REPORT, THE MEASURE OF AMERICA 2013–2014 18 (2014), http://www.measureofamerica.org/wp-content/uploads/2013/06/MOA- III.pdf [https://perma.cc/WA9H-9K4Z] (last visited Feb. 25, 2017). 48. Thomas C. Frohlich, Samuel Stebbins, & Michael B. Sauter, America’s Most Violent (and Peaceful) States, USA TODAY (July 29, 2016), http://www.usatoday.com/story/money/business/2016/07/29/americas-most-violent-and- peacefulstates/87658252/ [https://perma.cc/M7LA-MLDY] (last visited Feb. 25, 2017); Andrew Meola, The Most Violent Crime-Ridden States in America,THE STREET (Nov. 23, 2014), https://www.thestreet.com/story/12963542/1/the-most-violent-crime-ridden-states-in-america.html [https://perma.cc/TP2J-AV4N] (last visited Feb. 25, 2017). 49. Ewing, supra note 6, at 12-14. 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 537 have more economic mobility, accumulate more household wealth, and they “live longer, safer, healthier ” than citizens in sprawling areas.50 The SGA Report concluded that for every 10% improvement in an urban area’s score on the sprawl index, there is a “4.1 percent increase in the probability that a child born to a family in the bottom quintile of the na- tional income distribution reaches the top quintile of the national income distribution by age 30.”51 SGA also found that “[a]s metropolitan compact- ness increases, transportation costs decline faster than housing costs rise, creating a net decline in household costs.”52 Also, for every doubling of index score, life expectancy increases nearly 4%, which, given the life ex- pectancy of the average American, equates to three additional years of life.53 SGA attributes longer life expectancy to lower driving rates (fewer vehicle accidents), reduced body mass index (“BMI”), improved air quali- ty, and less violent crime in more compactly developed areas.54 Consider that “as a metro area sprawls more . . . the BMI of its population increases, after accounting for sociodemographic differences. . .Similarly, the likeli- hood of obesity increases.”55 People in less sprawling regions also have much lower blood pressure and rates of diabetes.56 Ultimately, the SGA report concludes that: metro areas with more compact, connected neighborhoods are associated with better overall economic, health and safety outcomes—on average a better quality of life for everyone in that community. As residents and their elected leaders recognize the health, safety, and economic benefits of better development strategies, many decisionmakers are reexamining their traditional zoning, economic development incentives, transportation decisions and other policies that have helped to create sprawling devel- opment patterns.57

Given the continued lax land use regulatory culture in southern states, however, it is unclear that southern decision makers are taking the negative correlation between sprawl and all the above social ills seriously—even though southern urban areas top the charts tracking both sprawl and low quality of life metrics associated with sprawl.

50. Id. at iv. 51. Id. at 9. 52. Id. at 10. 53. Id. at 11. 54. Id. 55. Id. 56. Id. 57. Id. at 12.  CHICAGO-KENT LAW REVIEW>9RO

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A. The Commons Dynamic Played out in U.S. Land Use Law 6FKRODUV KDYH WKRURXJKO\ GHWDLOHG WKH PHFKDQLVPV E\ ZKLFK SULYDWH ODQGRZQHUVDQGHYHQWKHJRYHUQPHQWVUHJXODWLQJWKHPFDQEHKDYHOLNH 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 539 the “rational herders” in the tragedy of the commons tale made popular by Garrett Hardin.58 Hardin described in stark terms the circumstances under which “appropriators” of resources seek to maximize self-interest to the detriment of society’s collective interest in commonly held “resource units” of natural capital, ultimately leading to resource destruction.59 His work has been expanded to demonstrate that in the absence of federal, state, or local regulation in the United States, private landowners can “appropriate” re- source units of natural capital from their property to the detriment of the commonly shared environment that stretches across the nation.60 They are incentivized to do so because they gain 100% of the benefit from, say, clearing their land for commercial development (or selling it to someone who will do the same); on the other hand, the cost of that development is spread across society, which suffers the negative from re- source units of natural capital being removed from the environment.61 Lo- cal governments can facilitate this appropriation in the absence of state or federal mandates, and states can do so in the absence of federal regulation. Thus, we see many “commons” nested within our federal system of gov- ernment, each of which can contribute to tragic overconsumption of re- sources at the national scale.62 Therein lies the crisis, particularly since the commons dynamic is per- vasive in the South. Most local governments in the region maintain ex- tremely lax land use controls, primarily out of a cultural predilection to resist government regulation at every turn.63 Unlike Oregon and Washing- ton, which maintain at least some state-level inputs into how local land use proceeds, most state governments in the South leave land use regulation entirely to local governments. The state of Tennessee is the only southern state that purports to require municipalities to enact growth boundaries, and while this mandate supposedly contemplates the reduction of urban sprawl,

58. See generally Blake Hudson, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause, 35 HARV.ENVTL.L.REV. 375 (2011); Blake Hudson & Michael Hardig, Isolated Wetland Commons and the Constitution, 2014 BYU L. REV.1443 (2014); BLAKE HUDSON,CONSTITUTIONS AND THE COMMONS:THE IMPACT OF FEDERAL GOVERNANCE ON LOCAL,NATIONAL, AND GLOBAL RESOURCE MANAGEMENT (2014). 59. See Garret Hardin, Tragedy of the Commons,162SCIENCE 1243 (1968); ELINOR OSTROM, GOVERNING THE COMMONS:THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 31 (1990). 60. See Blake Hudson & Jonathan Rosenbloom, Uncommon Approaches to Commons Problems: Nested Governance Commons and Climate Change, 64 HASTINGS L.J. 1273, 1276 (2013). 61. See Blake Hudson, Federal Constitutions: The Keystone of Nested Commons Governance, 63 ALA.L.REV. 1007 (2012). 62. Id. at 1013. 63. For an insightful perspective on the roots of southern culture and government regulation, see Colin Woodward, Up in Arms,TUFTS MAG., Fall 2013, http://emerald.tufts.edu/alumni/magazine/fall2013/features/up-in-arms.html [https://perma.cc/6FJ3- QZM7] (last visited Feb. 25, 2017). 540 CHICAGO-KENT LAW REVIEW [Vol 92:2 it seems primarily aimed at ensuring that growth occurs in the most eco- nomically efficient manner possible.64 A handful of southern cities have growth boundaries as well,65 with Lexington, Kentucky’s being probably the most effective from an environmental perspective. Other southern cit- ies, such as Miami, seem preoccupied with guiding how land is inevitably developed rather than thoughtfully weighing whether it should be devel- oped at all.66 Among additional laudable goals, local governments like Miami and other southern metro areas are obviously seeking to grow their citizenry, tax base, and economic productivity. But they do so primarily through the conversion of greenfields into new developments, as evidenced by the sprawl data presented in the previous section. To say that concepts of urban infill, urban growth boundaries, and other policies that encourage redevel- opment of previously developed lands are lagging in the South would be a severe understatement. Local governments in the South and the citizens who populate their jurisdictions are content to maximize their short-term economic welfare while ignoring long-term harm spread both geograph- ically across the nation and temporally, since future generations will bear the brunt of today’s poor land use decisions. Indeed, this phenomenon is playing out globally. A few years ago re- searchers at Brown University determined that one of the most accurate mechanisms for determining GDP growth for countries was from outer space.67 The researchers tracked, via satellite, nighttime changes in the intensity of artificial light over countries around the globe, and found that increases in light parallel increases in countries’ household incomes—thus signaling growing economies.68 The implication, of course, is that the clearing of evermore land and the creation of evermore sprawl and associ- ated environmental degradation facilitates economically desirable out- comes, over the short term at least, even if at odds with the preservation of crucial global natural capital. Intensity of light as a metric for economic

64. Tennessee Growth Policy,TENN.ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, https://www.tn.gov/tacir/section/tacir-growth-policy [https://perma.cc/C2PB-3EZW] (last visited Feb. 25, 2017). 65. A Coastal Community Enhancement Initiative: An Approach for Addressing Growth, Land Use & Environmental Impacts in Southern Delaware,UNIVERSITY OF DELAWARE, www.scc.udel.edu/sites/default/files/urbangrowthboundary.pdf [https://perma.cc/4TZY-GDP5] (last visited Feb. 25, 2017). 66. Mazzei, Patricia, Miami-Dade Commissioners Expand Urban Development Boundary,MIAMI HERALD (Oct. 2, 2013), www.miamiherald.com/2013/10/02/3666008/miami-dade-commissioners- expand.html [https://perma.cc/64C5-AP9N] (last visited Feb. 25, 2017). 67. See J. Vernon Henderson et al., Measuring Economic Growth from Outer Space, 102 AM. ECON.REV. 994, 996 (2012). 68. Id. 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 541 well-being is not inherently insidious, if society was, for example, building up and creating light from renewable energy resources. But as it stands, society is building out on pristine lands and creating light by burning most- ly fossil fuels that are warming the planet and threatening the stable exist- ence of mankind. Society remains nothing more than rational herders appropriating resource units of natural capital from the — and it is a dangerous . In a prime example of the “free-rider” problem presented by common- pool resource management, people say they care about protecting open space—ninety-two percent of Americans support protecting farmlands from development, 75% consider it unethical to pave over good farmland to provide housing, 85% say it is important to be able to get to natural areas quickly from where they live, and 85% say the loss of forest cover over the last three decades is a significant problem for .69 The NUSA Report interprets these data as proof that “Americans still value our rural land, oppose longer commute times to work and to daily, weekly, and monthly open-space destinations, increased environmental degradation, and higher economic costs, all of which are part of the price tag of sprawling urban development.”70 But if people feel so strongly about protecting open space, why do they do such a poor job of protecting it in their own jurisdictions? The pro-open space sentiment certainly has not translated into policy in the South. It seems what people really mean is they want to protect open space “as long as it is not in my city” or “as long as it does not interfere with our local growth.” Lax land use standards and rapid development of southern lands highlight a disconnect between what people say they want and what they demand from their state and local governments regarding land use. We must come to understand that the land use development dynamic at play in the United States is nothing more than a new form of the tragedy of the commons. The difference is that instead of herders, it is private prop- erty owners appropriating common-pool resources, and instead of an open pasture being degraded, it is an ecosystem that spreads across the bounda- ries of many private property owners and ultimately across the nation. We must understand that the problems that plague common-pool resource re- gimes are also at play in the urban development context, setting us on a path to a tragic land use crisis.

69. Kolankiewicz, supra note 1, at x. 70. Id. at 22. 542 CHICAGO-KENT LAW REVIEW [Vol 92:2

B. Dynamic Modern Environment Managing common-pool resources within a society seemingly deter- mined to “rationally” appropriate finite resources is difficult enough. Yet, when the health and availability of those resources change dynamically, management becomes even more arduous. Take the example of coastal lands; over half of the U.S. population lives in the coastal zone, within miles of the sea.71 That coastline is changing dramatically. Scientists are increasingly adjusting upward their estimates of coastal sea level rise by 2100, as new evidence comes to light.72 One reason is that is melting faster in Antarctica and Greenland than originally projected. In a recent study in Nature, scientists found that if trends continue oceans could rise by nearly two meters by 2100, and by fifteen meters by 2500.73 As a result, “the 22nd century would be the century of hell . . . There would really be an unthinkable level of sea rise. It would erase many major cities and some nations from the map . . . That century would become the century of exodus from the coast.”74 Miami, New Orleans, Boston, New York—all would be threatened at the two-meter mark.75 While the year 2500 may seem far off at present, at fifteen meters, many major coastal cities are gone, and large swaths of the entire east coast from Washington to South Florida are un- derwater for miles. At some point, without dramatic reduction in atmos- pheric greenhouse gas concentrations, a significant amount of the U.S. population will need to relocate away from the coastal zone. Consider what a retreat from the coast means for the inland environ- ment. People will not only need to live in new developments, but settle- ment will invariably compete with agriculture and the forests, wetlands, and other resources that remain. Coastal retreat will put even more strain on

71. SUSANNE C. MOSER &MARGARET A. DAVIDSON,NAT’L CLIMATE ASSESSMENT,COASTAL ZONE DEVELOPMENT AND ECOSYSTEMS (2014), http://nca2014.globalchange.gov/report/regions/ [https://perma.cc/K6FX-LD7Y] (last visited Feb. 25, 2017). 72. See William v. Sweet, Robert E. Kopp, Christopher P. Weaver, Jayantha Obeysekera, Radley M. Horton, E. Robert Thieler, and Chris Zervas, Global and Regional Sea Level Rise Scenarios for the United States, National Oceanic and Atmospheric Administration, NOAA Technical Report NOS CO- OPS 083, January 2017, available at https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_th e_US_final.pdf (last visited Apr. 22, 2017). 73. Brady Dennis & Chris Mooney, Scientists Nearly Double Sea Level Rise Projections for 2100, Because of Antarctica,WASHINGTON POST (Mar. 30, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/03/30/antarctic-loss-could- double-expected-sea-level-rise-by-2100-scientists-say/?utm_term=.d649387b9ede [https://perma.cc/SN6J-7F5N] (last visited Feb. 25, 2017). 74. Id. 75. Global Sea Level Rise Map,GEOLOGY.COM,http://geology.com/sea-level-rise/ [https://perma.cc/2DP2-CFWX] (last visited Feb. 25, 2017). 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 543 inland natural capital. Beyond this concern, the “next” coastline will need to be developed much differently than the current one—society cannot afford to make the same mistake again. Rather than sprawling develop- ments abutting a still-rising sea, we will need to integrate natural capital buffers between human settlements and the rising sea. This will be im- portant not only to prolong the life of those settlements until the next re- treat, if necessary, but also to buffer storm surge, erosion, and other natural phenomena that wreak havoc on human coastal settlements. The NUSA Report argues that even now “the potent combination of unrelenting development and from erosion and other factors is reducing America’s productive agricultural land base even as the demands on that same land base from a growing population are increas- ing.”76 Society will have even fewer agricultural lands from which to culti- vate when humans retreat from the coast and replace agricultural lands with human settlements. Consider that if cropland continues to be converted at the same rate that it was between 1982–2010, by 2100 the United States will have lost over half of its remaining cropland, adding to the 15% that has already been lost.77 If trends continue, by 2050 another 92,000 square miles of cropland will have been lost to residential and commercial devel- opments.78 One would hope that cropland would not continue being con- verted at present rates out of precaution for preserving agricultural productivity. Yet, when large swaths of over half of the U.S. population inevitably retreat from the coast and look for new settlements, it is likely that agricultural land will be converted as a result. In the alternative, new urban developments may take aim at forests and other non-agricultural natural lands. Either way, the environment degrades further. Whether it is retreat from coastal sea level rise, the recent flooding in south Louisiana,79 or the recent wildfires that burned down half of Gat- linburg, Tennessee,80 the natural environment is increasingly dynamic—a dynamism aided in no small part by human activities leading to a quickly changing climate. This dynamism cautions against society maintaining the land development patterns to which it has adhered to date, and it represents

76. Kolankiewicz, supra note 1, at 12. 77. Id. at 14. 78. Id. at 68. 79. Jim Sergent et al., Louisiana’s Historic , USA TODAY (Aug. 23, 2016), http://www.usatoday.com/pages/interactives/la-floods-august-2016/ [https://perma.cc/VP23-WZ4L] (last visited Feb. 25, 2017). 80. Judson Jones, ‘Gatlinburg was made to burn,’ professor says, CNN (Dec. 2, 2016), http://www.cnn.com/2016/12/02/us/weather-gatlinburg-was-made-to-burn/ [https://perma.cc/RD9S- 5NAD] (last visited Feb. 25, 2017). 544 CHICAGO-KENT LAW REVIEW [Vol 92:2 an independent layer of environmental crisis on top of the land develop- ment crisis created by sprawl.

C. Aggregation of Small-scale, Social-environmental Interactions What happens when individually rational actors (whether state and lo- cal governments or the individuals that they govern) are free to appropriate natural capital at will from an increasingly dynamic environment? Each interaction at the society-environment interface may not seem significant, but when aggregated the ramifications are severe. Climate change, urban sprawl, and a host of other global environmental problems demonstrate as much. A 2012 Nature article concluded that “planetary scale critical transi- tions have occurred previously in the biosphere, albeit rarely, and . . . hu- mans are now forcing another such transition, with the potential to transform Earth rapidly and irreversibly into a state unknown in human experience.”81 Historical frames of reference provide stark corollaries to the present. Consider the tragedy of Easter Island. When the first European visited Easter Island in the 1700’s, he found a starving, cannibalistic people, with only scrubby, small trees sparsely scattered across the island and makeshift, unseaworthy boats used for limited transportation.82 But as anyone familiar with the iconic Easter Island Moai knows, at one point Easter Island had been home to a culture advanced and wealthy enough to erect artistic stat- ues up to 30 feet high and weighing 80 tons and place them all over the island.83 In what might be considered a corollary to urban sprawl in the U.S. South, Easter Island had once been heavily vegetated with a palm forest, but “[o]ver time, the islanders cleared the vegetation, providing to cook their meat, timber to build their ocean-going canoes, and logs to transport and erect their massive statues . . . By the Fifteenth Century, however, the island had been cleared, the last palms chopped down.”84 Native birds and other pollinators went extinct due to loss of canopy cover, while soil erosion caused a of nutrients and a reduction in crop yields.85 People were forced to stop building wooden houses from timber and to live in caves.86 There was no wood to burn or to build statues and

81. A.D. Barnosky et al., Approaching a state shift in Earth’s biosphere, 486 NATURE 52, 52 (2012). 82. JAMES RASBAND,JAMES SALZMAN,&MARK SQUILLACE,NATURAL RESOURCES LAW AND POLICY 41 (2011). 83. Id. 84. Id. at 42. 85. Id. 86. Id. 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 545 canoes. Without canoes people could no longer fish, and they lost a key protein in their diet.87 Ultimately, “the Easter Islanders were unable to es- cape the consequences of their self-inflicted environmental collapse. De- struction of their natural environment presaged the destruction of their flourishing society and economy, leaving in its place the pathetic settlement of undernourished cave dwellers.”88 Jared Diamond has speculated on how this could have happened: any islander who tried to warn about the dangers of progressive defor- estation would have been overridden by vested interests of carvers, bu- reaucrats, and chiefs, whose jobs depended on continued deforestation . . . The changes in forest cover from year to year would have been hard to detect . . . Only older people, recollecting their child- hoods decades earlier, could have recognized a difference.89 As was the case with Easter Island, in the context of modern urban sprawl, “[c]orrective action is blocked by vested interests, by well- intentioned political and business leaders, and by their electorates, all of whom are perfectly correct in not noticing big changes from year to year. Instead, each year there are just somewhat more people, and somewhat fewer resources, on Earth.”90 Thus, whether on Easter Island or in the U.S. South, the aggregation of societal-environment interactions has both geographical and temporal components. There is perhaps no better chronicling of this geographic- temporal dynamic than Time Magazine’s Timelapse website,91 a project undertaken in conjunction with Google. Timelapse allows a user to zoom in on any area around the world and view land use changes from 1984 to 2016.92 Zooming in on virtually every southern city will demonstrate the year-by-year destruction of evermore natural capital on the fringe of ex- panding cities. One could imagine a 16th and 17th century satellite view of Easter Island demonstrating the same. One can witness the rapid transition of horse farms, wetlands, and forests in central Alabama to residential de- velopments and limestone quarries; the continued, destructive expansion of Houston, Texas—arguably the U.S. metropolis with the laxest land use controls of any major city; and the rapid clearing of land in Baton Rouge,

87. Id. 88. Id. 89. Jared Diamond, Easter Island’s End, DISCOVER MAG., Aug. 1995, http://discovermagazine.com/1995/aug/eastersend543. 90. Id. 91. Jeffrey Kluger, Time and Space,TIMELAPSE, http://world.time.com/timelapse/ [https://perma.cc/L5QE-BUT3] (last visited Feb. 25, 2017). 92. Id. 546 CHICAGO-KENT LAW REVIEW [Vol 92:2

Louisiana and the “North Shore” of Lake Pontchartrain.93 A common quip in land use circles is that Atlanta, Georgia and Raleigh-Durham, North Carolina will soon connect in one continuous metro area. And a review of the region on Timelapse helps one understand why. But even outside the South, areas that tout good land use planning, like Portland, Oregon, are still witnessing new sprawl. Portland is perhaps the iconic local government (and Oregon the iconic state) for modeling stringent land use planning. Oregon requires all metro areas to have an urban growth boundary,94 and Portland has one of the most stringent. Yet between 2000 and 2010 Portland sprawled outward an additional 50.4 square miles, primarily because Portland added 266,760 more people dur- ing the decade.95 Even though Portland’s density increased, reducing its per-capita sprawl, it gained in population sprawl. Raleigh, North Carolina also became denser, but due to the addition of 300,000 residents during the decade it sprawled outward an additional 198.5 square miles.96 Thus “[i]t seems as though even the best-intentioned and politically palatable policies, are only able to slow, not halt, Urban Sprawl.”97 Southern states adopting the Oregon approach would certainly be a step in the right direction, but it seems that the sprawl snowball is rolling downhill and accumulating inertia faster than even forward thinking states can manage. Perhaps what we need is better coordination across state and local governmental levels.98 This is, of course, supposedly the role of the federal government. Yet most federal statutes implicating land use only address the symptoms of problems, not the problems themselves. The fed- eral Endangered Species Act keeps species on life support but does little to address the habitat fragmentation that imperils species to begin with.99 The Clean Air Act regulates mobile source emissions (in conjunction with the states) but does not take aim at one of the primary contributors to mobile source pollution—land use patterns that lead to more vehicle miles traveled

93. Id. 94. See Urban Growth Boundary,OREGON METRO, http://www.oregonmetro.gov/urban-growth- boundary [https://perma.cc/WBS6-P2Z7] (last visited Feb. 25, 2017). 95. Kolankiewicz, supra note 1, at 69. 96. Id. 97. Id. at 71. 98. See Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 HARV.ENVTL.L.REV.445, 451 (2012). 99. Ecological Principles for Managing Land Use,ECOLOGICAL SOCIETY OF AMERICA, http://www.esa.org/esa/science/reports/managing-land-use/ [https://perma.cc/KSU5-X5BU] (last visited Feb. 25, 2017). 2017] CAPITAL CRISIS IN THE SOUTHERN U.S. 547 to sprawling outlying regions in metro areas.100 The Clean Act does not even address the most significant threat to the nation’s waterways, non- point source , due to its connection with the “traditional” state and local government function of land use regulation.101 It seems clear that whether at the federal, state, or local level more ag- gressive measures aimed not only at land use regulatory controls, but eco- nomic drivers, population pressures, behavioral economics, and related drivers will be needed to prevent small scale appropriative harms from heightening the aggregated land development crisis that our nation, and particularly the South, faces.

IV. CONCLUSION The United States, and the U.S. South in particular, face a crisis at the intersection of its cities and the natural environment. Poor land use plan- ning and development threaten not only the natural environment, but also the overall health and well-being of southern U.S. citizens. We must acknowledge and come to better understand the characteristics of human behavior (the “commons” mentality) that drives our land development de- cisions. We must understand how the quickly changing and dynamic mod- ern environment hastens the negative ramifications of our current land development crisis. And we must quickly educate ourselves on the inter- play between the commons herder mentality and our dynamic environment, so that we can avoid arriving at the destination to which our current path leads. Only by, first, acknowledging, and, second, setting about resolving the land development crisis can society provide a healthy and stable envi- ronmental context for addressing all of the other societal and economic crises faced by U.S. cities.

100. See HOWARD FRUMKIN,LAWRENCE FRANK,RICHARD J. JACKSON,URBAN SPRAWL AND :DESIGNING,PLANNING, AND BUILDING FOR HEALTHY COMMUNITIES 22–23, 67 (2004). 101. Nonpoint Source Pollution: The Nation’s Largest Problem,ENVTL PROT. AGENCY, http://water.epa.gov/polwaste/nps/outreach/point1.cfm [https://perma.cc/WDF6-ATAA] (last visited Feb. 25, 2017); see Robin Kundis Craig, Local or National? The Increasing Federalization of Nonpoint Source Pollution Regulation, 15 J. ENVTL.L.&LITIG. 179, 181, 182, 186 (2000).